Subject: NEW ITEM - Since Patent Rights are tied to first publication dates, the IETF's publishing documents starts those timers.

From: "todd glassey" <[email-masked]>
Date: Tue, 6 Jun 2006 21:13:51 -0700

As it happens the long-time claim that the IETF's actions have no effect on
the patentability of status of IP, is about as mush horse pucky as there
possibly could be... So the  release statement needs boiler plate
acknowledging that there is a patent timing issue started by the formal
publication of the IP by the IETF and that the submitter releases the IETF
from any liability it incurs by this publication...

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Btw - Side note: this a is a killer timeline of the patent's processed
through history and the last thirty years of it are especially
interesting...
http://www.economicadventure.org/teachers/lessons/DwyerTimeline.pdf

When a public disclosure is made in an industry publication, that material
would be considered a FIRST PUBLICATION event and because of this that
publication would be considered PRIOR ART by the US Patent Office, and for
guidance like this, the USPEM (The Patent Examiners Manual) is pretty clear
that any public disclosure starts the patent-clock timers running.

This is a reasonable timeline http://www.bpmlegal.com/pattime.html for a
patent application process - notice it starts with first public
disclosure... That is not public in the sense that its on CNN or NBC in
prime time, but that it is formally disclosed to a group that would
constitute an understanding audience i.e. as in published before the IETF's
WG's or larger across WG Constituency... Likewise I am betting that the
First Publication which triggers the timers would actually include
commentary in NoteWell considering the audience, and certainly the
publication of an I-D would trigger this clock running.

The problem is simple, nowhere is this noted or are there any assumptions of
liability by the submitter to protect the IETF from the damage that
publishing a draft with IP that someone else owns. Hell, it could
conceivably be prosecuted under the Economic Espionage Act IMHO if the
Justice Department really wanted to.

See Ghent Uninversitet -
http://www.ugent.be/en/research/technology%20transfer/researchers/patent%20issues/patent%20process
Its the same over the rest of the EU. Also see the www.epo.org site for more
details.

In Japan (http://www.jpo.go.jp/) the mere first publishing terminates any
patentability...  although that also may be changing under the Trilateral
Patent Organization - http://www.trilateral.net/ In the EU there are similar
restrictions to the US models,  but the point is that Patent Protection is
not setup uniformly across all countries...

So my call is that the IETF ***MUST*** assume the worst case scenario in all
of its operating documents, and that is that this document is someone else's
IP. That said the release language needs to be MUCH TOUGHER... and in fact
contractually bind the submitter to protect the IETF from any damages from
the illegal submission and wrongful publication of un-released IP's.

This isn't fantasy - its smart business and in today's world, being an
Ostrich just gets you plucked and roasted.

Todd

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